Lawmakers up a tree

While legislative leaders were slogging through a dark wood filled with budgetary bugaboos this week, Bexar County senators were looking to the trees. They found themselves, unexpectedly, defending San Antonio’s tree ordinance — and, by implication every other urban tree ordinance in the state — against an assault by state Sen. Troy Fraser, R-Horseshoe Bay, and his allies, state Sens. Robert Nichols, R-Jacksonvile, and Dan Patrick, R-Houston.

Fraser won, at least temporarily. By a vote of 24-7 on Friday afternoon, his colleagues approved his amendment that would prevent cities from enforcing tree ordinances in their extra territorial jurisdictions. If the legislation becomes law, it would be the demise of San Antonio’s tree ordinance, said state Sen. Leticia Van de Putte.

The tree battle — which turned out to be an interesting little legislative chess game — began late Wednesday afternoon as the Senate was finishing up its business for the day and senators were paying less than close attention to the proceedings. Fraser stood up to offer what seemed to be an innocuous amendment about notice requirements for land use on a military base. His colleagues thought the amendment applied only to Abilene, in Fraser’s district.

As state Sen. Jeff Wentworth, R-San Antonio, listened, Fraser “mumbled on” (Wentworth’s words), describing his amendment to House Bill 1665. The San Antonio lawmaker suddenly realized that his GOP colleague was describing legislation that would strip the power of cities to regulate planting, clearing and harvesting trees and other vegetation in their extra territorial jurisdictions. San Antonio’s ordinance, which seeks to protect the Edwards Aquifer from the effects of clear-cutting, is one of the more ambitious in the state.

Wentworth went looking for state Sen. Leticia Van de Putte, D-San Antonio, who was away from the Senate floor, but by the time she got back, the amendment had been approved. She did get back in time to protest that she and her colleagues had misunderstood the legislation. She got a ruling that allowed the body to take up the legislation again on Thursday. By then, there was no doubt what Fraser was attempting.

“This bill is saying that if you’re in the ETJ of a city, you can’t vote for the city council people, you’re not paying taxes, you’re not using city services, you do not live in the city, the city does not have the right to tell you what you can do with the vegetation on your property,” Fraser said when his amendment came up again on Thursday. He called it “a very clear personal property right issue.”

Van de Putte and Wentworth argued on the Senate floor that the tree ordinance was vital to protect the mission at Camp Bullis and the Army’s $2 billion investment in San Antonio. Clear-cutting of trees near the training facility forces the endangered golden-cheeked warbler to move to Army land, limiting its use for training, Van de Putte said.

Fraser maintained that Camp Bullis was exempted from his amendment by a three-mile circle drawn around every military installation.

Wentworth noted that San Antonio’s tree ordinance had been challenged in district court and that the challenge was defeated. Fraser’s bill, he said, was an effort to overturn existing law. He also noted that the city’s ordinance does not apply to private property.

“If you want to cut down every tree on your place, private property, you can do that,” Wentworth said.
The purpose of the ordinance, he said, was “to stop clear-cutting by out-of-state home builders who want who want to come in with a bulldozer and scrape every oak tree and every mesquite tree, every tree, off, to make more money for their investors.”

Fraser’s legislation has the support of the Greater San Antonio Builders Association, the Real Estate Council of San Antonio and the Texas Association of Builders.

Jim Short, a lobbyist who represents the Houston Real Estate Council, said the bill was most welcome by the building industry. “The limitations represented by Sen. Fraser’s amendment is a signal that the legislature is beginning to question the unrestrained exercise of power by cities outside of their city limits,” he said.
“What happens to the tree ordinance if Sen. Fraser’s amendment passes is that basically our tree ordinance is null and void,” Van de Putte said, “putting at risk the mission of Camp Bullis.”

“One issue that should trump everything we should stand for on this floor, above all else, is private property rights,” Patrick said. “I just cannot believe that we think a city should reach into the ETJ and have authority over those folks.”

The bill now returns to the House, where San Antonio lawmakers will attempt to strip away the Fraser amendment. State Rep. Trey Martinez Fischer, D-San Antonio, said he believes Fraser’s amendment likely violates a rule limiting legislation to one subject and another rule requiring amendments to be germane to the bill.

“We are personally affronted when somebody tries to take (local rights) away from us, especially somebody who’s not from the area,” Martinez Fischer said